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2021 Supreme(Jhk) 1004
IN THE HIGH COURT OF JHARKHAND AT RANCHI
SHREE CHANDRASHEKHAR, RATNAKER BHENGRA, JJ.
Pramod Saw, son of Kameshwar Saw – Appellant
Versus
The State of Jharkhand – Respondent
Criminal Appeal (DB) No. 763 of 2018
Decided on : 08-07-2021
Advocate Appeared:
For the Appellant :Mr. Arwind Kumar, Advocate
For the Respondent: Mr. Ashok Kumar, APP
The main legal point established in the judgment is the application of Exception 4 to section 300 of the Indian Penal Code, which considers the sudden fight, absence of premeditation, and the act being done in the heat of passion in determining the nature of the offense.
Headnote:
Indian Penal Code - Murder - Section 302 - [MURDER] - [CRIMINAL LAW] - [Section 302, Section 304 Part-II] - The court analyzed the evidence and found that the appellant assaulted the victim with an iron rod, resulting in fatal head injuries. However, the court applied Exception 4 to section 300 of the Indian Penal Code, considering the sudden fight, absence of premeditation, and the act being done in the heat of passion. As a result, the appellant's conviction under section 302 was set aside, and he was convicted under section 304 Part-II instead, leading to a reduced sentence.
Fact of the Case:
The appellant was convicted and sentenced to RI for life under section 302 of the Indian Penal Code for causing the death of the victim by assaulting him with an iron rod. The appellant challenged the judgment, and the court analyzed the evidence presented during the trial.
Finding of the Court:
The court found that the appellant did assault the victim with an iron rod, resulting in fatal head injuries. However, the court applied Exception 4 to section 300 of the Indian Penal Code, considering the sudden fight, absence of premeditation, and the act being done in the heat of passion. As a result, the appellant's conviction under section 302 was set aside, and he was convicted under section 304 Part-II instead, leading to a reduced sentence.
Issues: The main issue was whether the appellant's act constituted murder under section 302 of the Indian Penal Code or if it fell under Exception 4 to section 300, considering the sudden fight, absence of premeditation, and the act being done in the heat of passion.
Ratio Decidendi: The court applied Exception 4 to section 300 of the Indian Penal Code, considering the sudden fight, absence of premeditation, and the act being done in the heat of passion, which led to setting aside the appellant's conviction under section 302 and convicting him under section 304 Part-II instead.
Final Decision: The appellant's conviction under section 302 of the Indian Penal Code was set aside, and he was convicted and sentenced to RI for 7 years under section 304 Part-II. The appellant was ordered to be set free forthwith if not wanted in connection to any other case.
JUDGMENT :
Shree Chandrashekhar, J.
In Sessions Trial No. 548 of 2011, Pramod Saw has faced the trial on the charge under section 302 of the Indian Penal Code for causing death of Mukesh Choudhary. He was convicted and sentenced to RI for life and a fine of Rs. 10,000/-under section 302 of the Indian Penal Code with a default stipulation to suffer further SI for six months.
2. The appellant has challenged the judgment of Sessions Court dated 24.01.2018 by filing this criminal appeal under section 374(2) of the Code of Criminal Procedure.
3. On the basis of the fardbeyan of Umesh Choudhary which was recorded at 10:35 AM on 18.06.2011 by S.K. Sao, ASI of Bariatu police station in the unit of Dr. C.B. Sahay at RIMS, Chouparan PS Case No. 56 of 2011 was lodged against the appellant on 18.06.2011 for causing death of Mukesh Choudhary. In course of investigation the witnesses stated before the police that Pramod Saw picked up an iron rod lying outside the house of Mukesh Choudhary and mounted murderous attack on him. Some of the witnesses have also stated before the police that at the instigation of his parents Pramod Saw started assaulting Mukesh Choudhary. Dr. Binay Kumar who conducted the postmortem examination over the dead body of Mukesh Choudhary found three antemortem injuries caused by hard and blunt substance and in his opinion death was caused due to head injury about 18 hrs. + 6 hrs. from the time of postmortem examination.
4. After the investigation a charge sheet was laid against Pramod Saw and as noticed above he has faced the trial on the charge of committing murder of Mukesh Choudhary.
5. The prosecution has examined eight witnesses during the trial to prove the charge under section 302 of the Indian Penal Code. PW1-Sharda Mossomat is mother, PW2-Shintu Kumar Choudhary is nephew and PW3-Umesh Choudhary is cousin of the deceased. PW4-Keshari Sao and PW5-Indradeo Sao who are the co-villagers of the informant did not support the prosecution during the trial and they were declared hostile. PW7, Nisad Khan is the Investigating Officer who has stated in his cross-examination that there was one day's delay in sending the First Information Report in the Court and he did not issue requisition from Chouparan police station for treatment of Mukesh Choudhary. He has further stated that in course of investigation blood-stained iron rod or cloth of the injured was not collected.
6. The learned Additional Sessions Judge-III, Hazaribag has held that the defence could not bring out anything substantial in the testimony of the prosecution witnesses so as to disbelieve them, rather PW1, PW2 and PW3 are natural witnesses and PW6 is an independent witness.
7. In paragraph No. 22 of the judgment under challenge, the learned Trial Judge has appreciated the materials laid by the prosecution in the trial in the following manner:
“22. From the oral testimony of P.W.3 who is an informant and maternal brother of deceased stated that the occurrence is dt.16.6.11 at evening 7.00-7.30 hours, and on the said day he came to the house of Fufa and he was sitting on roof, at that time Pramod Sao near about 6.30 hours came to Mukesh house, and started scuffle with Mukesh and abusing started also then he came from the roof and perceive to both. Then Mukesh ousted Pramod from the house, and at that time father and mother also came and Pramod father said assault to Pasi. In this series, rod of iron kept outside of Mukesh house, Pramod taken and given 3-4 blows by rod on Mukesh head. The injury caused on Mukesh head, shoulder etc. The head was broken and blood oozing and Mukesh fell down in senseless condition, and during the treatment in RIMS Ranchi Mukesh was died in night at 8.45 hours. As such P.W.3 eye witness it is also quit clear that the accused committed the murder of deceased by assaulted rod on his head. The evidence of informant P.W.3 is corroborated by P.W2 Sintu Choudhary who is the deceased sister son eye witness stated the occurrence took place on 16
